Будь реалистом, требуй невозможного: проблемы применения компенсаторных механизмов конституционного правосудия

Вестник экономического правосудия Российской Федерации. 2025. № 1. С. 114–135.

Брикульский И. А.

Compensatory mechanisms are applied by the Constitutional Court when a review of the case following the judgment of the Constitutional Court cannot result in a full restoration of rights. Compensation could be utilised as an alternative to the case review. However, its regulation is limited to mentioning in the Law on the Constitutional Court. The law enforcement practice of ordinary courts on compensatory mechanisms is contradictory and unstable, even despite a number of legal guidelines of the Constitutional Court of the Russian Federation on this issue. The law enforcer does not have a systematic understanding of the nature of compensatory mechanisms as not only an alternative, but also an equivalent instrument of protection and restoration of violated constitutional rights. The formal approach of the ordinary courts leads to the fact that compensatory mechanisms are considered rather narrowly through the prism of civil compensation, the applicant is forced to repeatedly prove the harm caused to him, the causal link and the guilt of the state body. As a result, the mandatory nature of judgments of the Constitutional Court is questioned, the amount of compensatory mechanisms is significantly and unreasonably reduced, the bad faith of the applicant is presumed, therefore, the right to compensatory mechanisms becomes theoretical and illusory. The author refers to the practice of the Constitutional Court, law enforcement practice, decisions of a number of constitutional courts of Europe, applying similar compensatory instruments, international law and offers his view on potential criteria that can be used by the ordinary courts to assess compensatory mechanisms.

Keywords: Конституционный Суд РФ, компенсация, compensation, конституционное правосудие, возмещение вреда, constitutional justice, constitutional court of Russian Federation